State v. Tabler

[Cite as State v. Tabler, 2017-Ohio-2617.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2017-0012
RONNIE TABLER II
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2014-0105
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 1, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
D. MICHAEL HADDOX RONNIE L. TABLER II
PROSECUTING ATTORNEY NOBLE CORRECTIONAL INSTITUTION
GERALD V. ANDERSON II 15708 McConnelsville Road
ASSISTANT PROSECUTOR Caldwell, Ohio 43724
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0012 2
Wise, John, J.
{¶1} Appellant Ronnie Tabler, II appeals his conviction and sentence entered in
the Muskingum County Court of Common Pleas on two counts of trafficking in heroin,
one count of possession of heroin and one count of possession of cocaine, following a
plea of no contest.
{¶2} Appellee is the State of Ohio.
{¶3} The instant case comes to us on the accelerated calendar. App.R. 11.1
governs accelerated-calendar cases and states in pertinent part:
{¶4} “(E) Determination and judgment on appeal. The appeal will be determined
as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the
statement of the reason for the court's decision as to each error to be in brief and
conclusionary form.
{¶5} One of the most important purposes of the accelerated calendar is to enable
an appellate court to render a brief and conclusory decision more quickly than in a case
on the regular calendar where the briefs, facts, and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App. 3d 158, 463 N.E.2d 655 (1983).
STATEMENTS OF THE FACTS AND CASE
{¶6} On October 20, 2014, Appellant Ronnie Tabler, II, entered a plea of
guilty to two counts of trafficking in drugs (heroin), in violation of R.C.
§2925.03(A)(1), fourth-degree felonies, one count of possession of drugs (heroin),
in violation of R.C. §2925.11(A)(1), a third-degree felony, and one count of
possession of drugs (cocaine), in violation of R.C. §2925.11(A)(1), a second-degree
Muskingum County, Case No. CT2017-0012 3
felony. Three of the four counts also contained forfeiture specifications pursuant to
R.C. §2941.1417.
{¶7} As to the Possession of Cocaine charge, Appellant pled guilty and
stipulated to possession in an amount sufficient for a felony of the second-degree.
{¶8} In exchange for his plea, the state dropped two additional drug charges
and a charge of having weapons while under disability.
{¶9} On December 8, 2014, the trial court sentenced Appellant to 16 months
on each of the trafficking counts, 24 months on the possession of heroin charge and
5 years on the possession of cocaine charge, all to run concurrently, for an
aggregate prison term of 5 years.
{¶10} On January 26, 2017, Appellant filed a motion to withdraw his guilty plea
with the trial court.
{¶11} On February 4, 2017, the trial court denied his motion.
{¶12} Appellant now appeals, setting forth the following assignment of error:
ASSIGNMENT OF ERROR
{¶13} “I. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL DUE TO DEFENSE COUNSEL’S ERRONEOUS ADVICE THAT HE ENTER
GUILTY PLEAS TO ENHANCED-DEGREE FELONIES FOR POSSESSION OF
DRUGS (COCAINE) BASED ON GROSS WEIGHT THAT INCLUDED OTHER
MATERIAL, INSTEAD OF THE WEIGHT OF ACTUAL COCAINE, IN VIOLATION OF
HIS RIGHT TO DUE PROCESS.
{¶14} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DENIED APPELLANT [SIC] MOTION TO WITHDRAW HIS GUILTY PLEA WHEN A
Muskingum County, Case No. CT2017-0012 4
CLEAR MANIFEST INJUSTICE HAD BEEN SHOWN BY THE RECORD AND
DOCUMENTATION.”
I., II.
{¶15} In his two Assignments of Error, Appellant argues that the trial court erred
by denying his Crim.R. 32.1 motion to withdraw his guilty pleas. Specifically, Appellant
contends that the ineffectiveness of his trial counsel coupled with the Supreme Court of
Ohio's holding in State v. Gonzales, Slip Opinion No. 2016–Ohio–8319, warrant the
withdrawal of his guilty pleas. We disagree.
{¶16} We review the trial court's denial of a motion to withdraw a guilty plea under
an abuse of discretion standard of review. State v. Pepper, 5th Dist. Ashland No. 13 COA
019, 2014–Ohio–364, ¶ 31 citing State v. Caraballo, 17 Ohio St. 3d 66, 477 N.E.2d 627
(1985). In order to find an abuse of discretion, we must determine the trial court's decision
was unreasonable, arbitrary, or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983). “A
motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial
court, and the good faith, credibility and weight of the movant's assertions in support of
the motion are matters to be resolved by that court.” State v. Pepper, 2014–Ohio–364, ¶
31 quoting State v. Smith, 49 Ohio St. 2d 261, 361 N.E.2d 1324 (1977), paragraph two
of the syllabus. Crim.R. 32.1 provides, “A motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.”
Muskingum County, Case No. CT2017-0012 5
{¶17} A Crim.R. 32.1 motion is not a collateral challenge to the validity of a
conviction or sentence and instead only focuses on the plea. State v. Bush, 96 Ohio
St.3d 235, 773 N.E.2d 522, 2002–Ohio–3993, ¶ 13. However, under the “manifest
injustice” standard, a post-sentence withdrawal motion is granted only in extraordinary
cases. State v. Aleshire, Licking App.No. 09–CA–132, 2010–Ohio–2566, ¶ 60.
{¶18} Appellant's basis for moving to withdraw his guilty pleas was that his trial
was ineffective. “Ineffective assistance of counsel can form the basis for a claim of
manifest injustice to support withdrawal of a guilty plea pursuant to Crim.R. 32.1.” State
v. Adames, 5th Dist. Licking No. 16–CA–45, 2017–Ohio–587, ¶ 9. State v. Dalton, 153
Ohio App. 3d 286, 292, 2003–Ohio–3813, ¶ 18.
{¶19} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St. 3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, Appellant must show counsel's performance fell below
an objective standard of reasonable representation and, but for counsel's error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d
373 (1989).
{¶20} Appellant argued that his trial counsel was ineffective for failing to request
that the cocaine seized at the time of his arrest be tested for its purity. Appellant cites
the Supreme Court of Ohio's decision, State v. Gonzales, Slip Opinion No. 2016–Ohio–
8319 (Gonzales I ), which held that the State, in prosecuting cocaine offenses involving
mixed substances under R.C. §2925.11(C)(4)(b) through (f), must prove that the weight
Muskingum County, Case No. CT2017-0012 6
of the actual cocaine, excluding the weight of any filler materials, meets the statutory
threshold. Id. at ¶ 1.
{¶21} However, the Supreme Court subsequently released a second decision,
see State v. Gonzales (Gonzales II), Slip Opinion No. 2017–Ohio–777, wherein it
granted the State's motion for reconsideration, vacated its decision in Gonzales I, and
reversed the judgment of the Sixth District Court of Appeals. Id. at ¶ 3.
{¶22} Accordingly, Appellant's reliance upon the holding in Gonzales I is without
merit.
{¶23} Based on the Ohio Supreme Court's decision in State v. Gonzales
(Gonzales II ), Slip Opinion No. 2017–Ohio–777, we find Appellant's assignments of error
not well-taken and hereby overrule same.
{¶24} For the foregoing reasons, the judgment of the Court of Common Pleas of
Muskingum County, Ohio, is affirmed.
By: Wise, John, J.
Delaney, P. J., and
Baldwin, J., concur.
JWW/d 0425